R. v. W.: HIV non-disclosure back at the Supreme Court — but with a twist

On December 8, 2014, the Supreme Court of Canada heard R. v. W., an HIV non-disclosure case in which the Canadian HIV/AIDS Legal Network the HIV & AIDS Legal Clinic Ontario (HALCO) and COCQ-SIDA (the provincial network of HIV organizations in Quebec) intervened.

In this case, a man living with HIV was appealing his conviction for HIV non-disclosure on several grounds.  These largely had to do with how the trial judge dealt with evidence brought forward in the trial and his assessment of the credibility of the complainant and the accused.  Given the circumstances, of the case, there was the possibility that the Supreme Court of Canada might address the significance of the evidence about a complainant’s sexual activity (beyond the sexual acts in question) before or after learning of an accused’s HIV-positive status.  We decided we should intervene to speak to this issue, given our ongoing concerns about the over-extension of the criminal law in Canada when it comes to prosecuting allegations of HIV non-disclosure.

In this case, so as to prevent the further unwarranted expansion of HIV criminalization, we asked the Court to reaffirm certain basic principles of the criminal law. One well-settled point in Canadian law is that the Crown must prove beyond a reasonable doubt that the complainant would not have consented to sex if they had been aware of the accused’s HIV-positive status.  Defence lawyers must be able to challenge a complainant’s claim to this effect. Therefore, defence lawyers should be able to introduce relevant evidence on this point —and this can include evidence about the complainant’s sexual conduct before or after the sexual encounter that may demonstrate an acceptance of a risk of exposure to HIV (e.g., sex with partners known to be HIV-positive or of unknown serostatus).

The appeal brought by the defense was dismissed in an oral judgment from the bench shortly after the hearing.  The Supreme Court said it did not believe the trial judge had erred in his analysis of the credibility of the parties or in his analysis of the evidence as a whole; therefore, his decision was upheld. Because the Court dealt with the appeal in this way, it did not directly address our arguments.

But we believe our intervention was helpful and necessary. The Supreme Court’s decision implicitly admits that evidence that a complainant continued to engage in sex after disclosure is relevant when determining whether or not they would have consented to sex had they been aware of the accused’s HIV-positive status.

It was also noteworthy that, at the hearing, the Crown conceded in its oral submissions that post-disclosure sex was relevant, and none of the Supreme Court judges questioned the position that defense lawyers should be able to introduce evidence about the complainant’s sexual conduct before or after the sexual encounter that may demonstrate an acceptance of a risk of exposure to HIV. The question is not whether such evidence can be admitted as relevant, but rather what weight it should be given.

To learn more about our intervention and the issues at stake, read on.


R. v. W.: HIV non-disclosure back at the Supreme Court — but with a twist

What were the facts of the case?

The accused’s version and the complainant’s version of the facts often differ. But there is no dispute that the accused and the complainant first met in a gay sauna in Montréal in the summer of 2005, where their sexual encounter included at least one act of anal intercourse with a condom and also oral sex without a condom, and no discussion of HIV or other sexually transmitted infections. They also agree that during the summer they met at the accused’s place and had anal sex without a condom. The accused did not have a low viral load at the time. After this, the accused told the complainant he is HIV-positive; he testified that he thought the complainant was also HIV-positive, given the circumstances of their initial encounter.

Following this disclosure, the complainant went for an HIV test; the result was negative. According to the accused, he and the complainant continued to have a relationship, including anal sex both with and without a condom, on a regular basis until October 2005 when the relationship ended. Two witnesses confirmed that they saw the accused and the complainant acting towards each other in a manner that indicated they were in a relationship. The complainant, however, denies that they continued to have such a relationship or that they engaged in further sexual activity.  In May 2006, the complainant tested HIV-positive.

What were the legal issues?

Under current Canadian law, in order to get a conviction for (aggravated sexual) assault because of HIV non-disclosure, the prosecutor must prove the following three things beyond a reasonable doubt:

1)      there was no disclosure of HIV-positive status by the accused person;

2)      there was a “significant risk of serious bodily harm” (which the Supreme Court has most recently said means a “realistic possibility of HIV transmission”); and

3)      the complainant would not have consented to have sex had they known that the accused was HIV-positive.

In previous interventions before the Supreme Court, including in the cases of Mabior and D.C. decided in 2012, we focused on the second of these requirements. We put before the Court many concerns about how an overly broad use of criminal law is bad for public health and for human rights. We argued that at the very least the Supreme Court should recognize that certain sexual activities —such as sex with a condom, condomless sex with an undetectable viral load, and oral sex —do not pose a “significant risk” of transmission for purposes of the criminal law. Therefore, non-disclosure before such activities should not be a crime.

But here’s the twist: in this case, our intervention focuses on the third requirement mentioned above — i.e., whether the Crown has proven beyond a reasonable doubt that the complainant would not have consented to sex if he had known that the accused was HIV-positive. To date, the Supreme Court has provided no guidance on this point.

This third requirement exists because of the idea that non-disclosure of HIV can legally invalidate a partner’s consent to sex in what are otherwise consensual circumstances. What generally happens in HIV non-disclosure trials is that the Crown prosecutor asks a complainant during their testimony whether they would have consented had they known that their partner was HIV-positive. The complainant says something along the lines of, “No, I would not have consented to sex had I known my partner was HIV-positive.” Generally, the claim is accepted at face value and this third element of the prosecution’s case is considered proved, unless there is some other major concern about the credibility of the complainant.

The case of R. v. W .is a good illustration of why it can be important to question a complainant’s after-the-fact claim that their consent to sex was contingent upon the accused being HIV-negative. In this case, it’s accepted that the complainant and the accused met in a casual sex environment (i.e., a sauna) and that there was no discussion about sexually transmitted infections during that encounter. Furthermore, there is some evidence —although it was contested by the complainant —that the complainant continued to engage in sex with the accused with and without condoms after the accused disclosed his HIV status. This evidence could be relevant to whether the Crown has proved beyond a reasonable doubt that the complainant would not have had sex with “W” if he had known that is HIV-positive.

In our intervention, we argue that, in order to avoid (further) unjust convictions, it’s important for the Supreme Court to reaffirm certain basic principles of the criminal law, including the following:

(a)    the Crown must prove beyond a reasonable doubt that the complainant would not have consented to sex if they had been aware of the accused’s HIV-positive status;

(b)   defence lawyers must be able to challenge a complainant’s claim to this effect; and

(c)    therefore, defence lawyers should be able to introduce relevant evidence on this point —including evidence about the complainant’s sexual conduct before or after the sexual encounter that may demonstrate an acceptance of a risk of exposure to HIV (e.g., sex with partners known to be HIV-positive or of unknown serostatus).

These principles are important because misperceptions about HIV and people living with HIV can give rise to a false assumption that no person would reasonably take the risk of having sex with a partner they know has HIV.  Yet this is demonstrably untrue. Moreover, in many instances, people do willingly engage in sex that they know may pose some risk (e.g., with a partner of unknown serostatus) and they accept such risks. It would be unfair to ignore this reality given the very serious nature of these criminal prosecutions and their repercussions for people living with HIV.

Why did we intervene?

Our decision to intervene in this case was a difficult one. We are human rights organizations that work on issues of sexual equality, autonomy and dignity. We strongly believe in the importance of protecting complainants — predominantly women —against common myths that are too often at play in cases of sexual violence. Specifically, there are legal rules in place in cases of sexual assault to prevent evidence of a complainant’s other sexual activity from being used to suggest either that the complainant is less believable or is likely to have consented to a particular sexual encounter because they have engaged in other sexual activity. As a general rule, the credibility of survivors of sexual violence should not be challenged based on their sexual conduct before or after an instance of sexual assault.

But cases of HIV non-disclosure are very different from cases of forced or coerced sex. In cases of HIV non-disclosure, the complainant consented to sex at the time. That consent is later put into question because of a claim that the accused committed a “fraud” by not disclosing their HIV-positive status. Cases of alleged HIV non-disclosure are not about consent to engage in sexual activity; instead, they are about consent to running a risk (often exceedingly small) of HIV transmission in the context of sex. This is an important distinction.

Moreover, we are not arguing that evidence that a complainant has accepted some risk of exposure to HIV, either in the past or following disclosure of a partner’s HIV-positive status, will necessarily and always cast doubt on his or her credibility. But in some cases, it will be highly relevant. It could raise a reasonable doubt about a complainant’s claim that knowing that the accused was HIV-positive would have been determinative in their decision to engage in sex.

And unfortunately, given the apparent willingness of the Supreme Court, in the earlier cases of Mabior and D.C., to cast the net of criminalization more widely, it’s even more necessary to ensure that prosecutions of people living with HIV for alleged non-disclosure are held to the correct legal standard of ensuring proof beyond a reasonable doubt of all three elements listed above.

That is why we felt compelled to intervene.

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